AMP17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2. The application for an extension of time be dismissed.
3. The first applicant pay the costs of the first respondent fixed in the amount of $3000. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

DAVIES J: 1 The applicants have applied for an extension of time in which to appeal the decision of the Federal Circuit Court of Australia ("the FCC"), which dismissed their application for judicial review of a decision of the Immigration Assessment Authority ("the Authority"). The Authority affirmed the decision of the delegate of the first respondent ("the Minister") not to grant the applicants Safe Haven Enterprise visas ("the visas"). An extension of time is required as the applicants are 67 days out of time in which to file their appeals. The application was supported by an affidavit affirmed by the first applicant in which she stated she does not really know and understand the law and does not know if they were too late to appeal. The Minister argued that the application should be dismissed due to the length of the delay, the unsatisfactory explanation given by the first applicant for the delay, and the fact that, should an extension be granted, the proposed draft appeal grounds have no reasonable prospect of success. 2 The length of the delay is relatively significant and the explanation given by the first applicant for the delay is also inadequate and not satisfactory. The first applicant's lack of knowledge of the law is not a sufficient reason to grant an extension of time in circumstances where no explanation was provided as to what steps the first applicant took after receiving the decision of the FCC to ascertain her rights, to determine what steps she needed to take, or to lodge an appeal. Both the delay, and lack of satisfactory explanation for the delay, weigh heavily against the granting of an extension. 3 The proposed grounds of appeal, in any event, have no reasonable prospect of success and, in that circumstance, there would be no utility in granting the extension of time. 4 Before the FCC the grounds of review were as follows: 1. The Assessor failed to properly consider all of my claims. 2. The Assessor didn't give me a chance to comment on one aspect of my claims. 5 Neither ground was particularised and the applicants did not file written submissions as directed by the FCC (at [25]). The reasons of the FCC record that the first applicant asserted from the bar table that the Authority had made mistakes by not believing her claims (at [27]) and had unfairly treated her family (at [27]). 6 The FCC, in dismissing the application for review, found that the matters raised by the first applicant in substance amounted to a challenge to the adverse credibility findings made against the first applicant and an invitation to the FCC to review the applicants' protection claims afresh, with a view to accepting that the applicants should be allowed to stay in Australia. Adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 v Minister for Immigration and Border Protection (2016) 250 FCR 109; [2016] FCAFC 174 at ). Adverse credibility findings can also be challenged where there has been a failure to give a proper, genuine and realistic consideration as to the issues and material before the decision-maker. The FCC held that the Authority's adverse findings were open on the material before the Authority and the first applicant's disagreements with the adverse credibility findings did not identify any relevant error by the Authority (at [27]). No error is discernible in that finding. It is well apparent from the careful analysis of the Authority that there was a proper and logical basis for the adverse credit findings, having regard to the many and significant inconsistencies and omissions in the evidence of the first applicant and of her husband, despite advice to them on a number of occasions in their visa interviews with the delegate to be truthful and the opportunity given to them to correct their evidence. Moreover, insofar as the first applicant sought to have the FCC look at the merits of the applicants' case, the FCC correctly held that the Court did not have the power to review the merits, nor did the Court have the power to determine the matter on discretionary or compassionate grounds (at [29]). 7 The FCC also considered the specific grounds in the application for review. As to ground 1, the FCC found that no claim had been identified that the Authority failed to take into account or make dispositive findings in respect of that claim (at [31]). As to ground 2, the FCC found that as the review by the Authority was done under Part 7AA of the Migration Act 1958 (Cth) ("the Act"), the Authority was not required to invite the applicants to comment or to conduct a hearing in respect of the review under Part 7AA of the Act (at [33]). The FCC was correct to so hold for the reasons given and no appealable error is discernible in respect of the reasoning and conclusion of the FCC on either ground. 8 As the proposed draft appeal relies on the same grounds, but alleges that the FCC erred in rejecting the grounds below, the proposed grounds have no reasonable prospect of success. 9 In response to questions from the bench, the first applicant also sought to rely upon matters that were not advanced either before the Authority or before the FCC. Those matters related to events which happened whilst the applicants were in detention, and the first applicant sought to rely upon an affidavit to which she exhibited documents evidencing the particular matters. Also annexed to that affidavit was a handwritten document, which, effectively, was a written submission by the first applicant. The Minister objected to the admission into evidence of the affidavit and the annexed documents, apart from the written submission. That objection is upheld as none of the documents were before the decision-makers and do not bear upon whether there was legal error in the decision of the Authority amounting to jurisdictional error in affirming the delegate's decision not to grant the applicants the visas. 10 As both the oral and written submissions of the first applicant amounted to a plea for merits review, which this Court does not have the power to do, no appealable error has been identified and, for the above reasons, the application for an extension of time should be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies.